IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL NO.715/2015 (C) BETWEEN:
KOUSER @ SYED S/O SHAFI @ SYED SHAFI AGED ABOUT 21 YEARS R/AT DARGA MOHALLA ADEPETE, NELAMANGALA TOWN – 571 432 … APPELLANT (BY SRI. JAGADEESHA B. N., ADV. FOR SRI. CHANDRANNA N., ADV.) AND:
STATE BY NELAMANGALA TOWN P.S. REP. BY STATE PUBLIC PROSECUTOR HIGH COURT, BENGALURU – 560 001 … RESPONDENT (BY SRI. I. S. PRAMOD CHANDRA, SPP-II) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 22.01.2015 PASSED BY THE I ADDL. DIST. AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU IN S.C.NO.227/2012 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 201 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, K.N. PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT The sole accused/appellant has come up with this appeal challenging the judgment of conviction dated 22.01.2015 and order on sentence dated 24.01.2015 passed by the I Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru, in SC No.227/2012; convicting the appellant for the offence punishable under sections 302 and 201 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- with default sentence to undergo simple imprisonment for 2 months for the offence punishable under section 302 of IPC; and also sentencing him to undergo simple imprisonment for a period of three years and to pay a fine of Rs.5,000/- with default sentence of simple imprisonment for one month for the offence punishable under section 201 of IPC.
2. We have heard the arguments of the learned counsel for the appellant Sri. Jagadeesha B. N., for Sri. Chandranna N. Advocate and also the learned State Public Prosecutor-II Sri. I.S. Pramod Chandra for the respondent - State.
3. Before adverting to the rival submissions made before the court by the respective counsel, we feel it just and necessary to have the brief factual matrix of the case which is unfolded in the records of the trial Court:
It is the case of the prosecution that, the accused/appellant Kouser @ Syed Kouser and the deceased Afroz Pasha were friends earlier and they had some differences between themselves in connection with the love affair with a particular girl. In this background, it is alleged that on the day of the incident, that was on 20.12.2011, in the evening the appellant/accused took the deceased with him and they talked with each other upto 8.00 p.m., and thereafter it is alleged that the accused went to the house of PW-1 Umesh and secured the Godown key from PW-2 Pushpalatha on the ground that he would like to sleep in the said Godown on that particular night.
4. It is the further allegations that the accused has also took the deceased along with him to sleep in the said Godown and in fact they slept in the said Godown. On the next day PW-1 had been to the Godown, as usual, in the early hours at about 4 or 4.30 a.m., and he found the shutter of the said Godown was half opened. As he went inside the godown, he found the legs of a person which was wrapped in a shamiyana side wall. He has also observed some blood sprinkled around, and by the side of the dead body he found a grinding stone on the cement floor and in fact he saw a dead body and identified it as that of Afroz Pasha @ Appu. Immediately, he went to the Police Station and lodged a report suspecting that the appellant/accused might have committed the murder of the deceased. PW-1 has lodged a report as per Ex.P-1. On the basis of which, the respondent Police have registered a case in Crime No.334/2011 for the offence punishable under sections 302 and 201 of IPC. The police after thorough investigation have laid a charge sheet against the accused for the above said offences; accused was arrested and produced before the jurisdictional court.
5. After committal proceedings, the trial Court after securing the presence of the accused, framed charges against him for the above said offences and put the accused on trial. As the accused pleaded not guilty, charges were levelled against him.
6. The prosecution in order to bring home the guilt of the accused examined as many as 13 witnesses as PWs.1 to 13 and got marked Exhibits P-1 to P-28 and also marked Material Objects MOs.1 to 12. The accused was also examined under Section 313 of Cr.P.C. and called upon the accused to give defence evidence if any. As the accused did not choose to lead any defence evidence, after hearing both the sides, the trial Court has arrived at a conclusion that the prosecution has proved the case beyond all reasonable doubts and as such, convicted and sentenced the accused as noted supra.
7. The learned counsel for the appellant has contended before this court that the entire case revolves around the circumstantial evidence. The circumstances as projected by the prosecution are mainly divided into:
(1) Motive;
(2) Last seen of the accused and the deceased together; and (3) Recovery of some of the incriminating articles at the instance of the accused.
8. The learned counsel for the appellant submitted that, though the prosecution has made attempts to prove the above said circumstances, but the prosecution has not proved the same beyond all reasonable doubts. There are serious doubts in the evidence of the prosecution witnesses and also there are contradictions and omissions, when compared to the earlier statement of the witnesses, which has not been properly considered and appreciated by the trial Court. The learned counsel also contends that the accused was defended through standing counsel appointed by the court and on material evidence there was no substantial cross examination made by the learned counsel so far as the prosecution witnesses are concerned. Therefore, prejudice occurred in the case during the course of the trial which also led the trial court to draw an inference against the accused.
9. The learned counsel for the appellant further contended that, there is an explanation given by the accused while recording his statement under section 313 of Cr.PC., and that, the same has not been properly considered and appreciated by the trial Court with reference to the evidence on record. Further, the learned counsel for the appellant has also contended that the trial Court has mainly relied upon the evidence of PWs.1 & 2 and also the witnesses of last seen PWs.3, 4 and 6 to believe the evidence of these witnesses as gospel truth. Though the last seen together theory even if it is said to be proved beyond reasonable doubt, the said sole circumstance is not sufficient to convict the accused without any other corroborative materials on record to show the reason for commission of the murder, as the prosecution has failed to establish the motive factor in this particular case. Lastly, the learned counsel has also argued before this court that Section 201 of IPC is not attracted in spite of that without giving any reason, without appreciating the provision itself with reference to the evidence on record, the trial Court has grossly erred in convicting and sentencing the accused for the above said offence. In this context, he relied upon various rulings, which we would like to discuss little later, while considering the relevant circumstance.
10. Per contra, learned State Public Prosecutor-II has strenuously contended that the evidence of the prosecution witnesses clearly discloses that, the prosecution has beyond reasonable doubt established the above said circumstances. During the course of cross examination of the relevant witnesses, in fact, motive factor has been amplified, it is not the last seen theory alone available to the prosecution, but it is also fully supported by the homicidal death of the deceased and also recovery of the incriminating articles i.e., blood stained clothes of the accused which are tallied with the blood group of the deceased during Forensic examination of the Material Objects sent by the Investigating Officer to the RFSL. Therefore, it is not that on the sole theory of last seen, the accused has been convicted. Further, it is contended that, the trial Court has considered in detail the oral and documentary evidence on record and particularly, considered 313 Cr.PC. statement of the accused and found nothing on record to support the said version of the accused stated in 313 Cr.PC. statements. Therefore, the trial Court has rightly, after appreciating the evidence on record, has convicted and sentenced the accused. Therefore, there is no reason to interfere with the judgment of conviction and sentence passed by the trial Court.
11. In the light of the above said submissions made by the learned counsel, before adverting to the material witnesses with reference to the circumstantial evidence projected by the prosecution, we would just like to have the brief cursory look at the evidence of the prosecution witnesses.
12. PW-1 Umesh is no other than the employer of the accused and accused was working under him and he was the owner of a godown. He has stated that he knew the deceased Afroz pasha and also deposed to the effect that the accused took the Godown key from this witness through his wife and slept in the Godown attached to his house. On the next day morning he found the dead body of Afroz pasha in the godown; and that the accused was not seen there. He has further deposed that thereafter he lodged a complaint as per Ex.P-1 and also spoken to about the Police coming to the spot, drawing up of spot Mahazar as per Ex.P-2 and also identified the photographs Exhibits P-3 to P-9 and also MOs.1 to 5 which were seized at the spot. PW-2 is no other than the wife of PW-1. She has also deposed almost similar evidence as that of PW-1. She has specifically stated about the accused taking the key of the Godown to sleep in the said Godown in the night on the previous day of the incident.
13. PW-3 Asif Ulla Khan neighbour of the deceased Afroz pasha has deposed to the effect that he has last seen the accused and the deceased together under Peepal tree on the previous day of the incident at about 8 or 8.30 p.m., 14. PW-4 Thimmegowda, Cashier working in Savitha Bar, was examined for the purpose of establishing that the accused and the deceased went to the said Savitha Bar on the previous day of the incident and consumed Alcohol, but this witness has not supported the case of the prosecution to any extent.
15. PW-5 Rehmathulla, is the spot panch witness and he supported the case of the prosecution; identified his signature on Ex.P-2 Mahazar and also identified MOs.1 to 5 articles seized.
16. PW-6 Mohammed Habib is also another neighbour, who has seen the dead body in the Godown of PW-1 on the next day of the incident. He has further deposed that he has seen the accused and the deceased sitting together under a Peepal tree on the previous day night; he also spoke about the Police secured Police sniffer dogs to the spot on the next day. After sniffing the scene of offence, the sniffer dogs directly went to the house of the accused and stopped there.
17. PW-7 Lakshminarayana is the panch witness to inquest panchnama drawn by the Police as per Ex.P-12. He has in fact deposed with regard to the injuries on the head of the deceased.
18. PW-8 Jareena is no other than the mother of the deceased. She has categorically stated about the accused taking the deceased on the previous day along with him on motorcycle on the guise that they would go to the Godown of PW-1 to sleep. On the next day, she came to know that her son was killed by the accused. Then she went to the Godown of PW-1 and saw the dead body of her son. She has also stated about the motive factor with regard to the dispute existed between the accused and the deceased with reference to love affair with a girl.
19. PW-9 Nisar Ahmad is a witness to panchanama Ex.P-13 under which, the Investigating Officer has recovered blood stained clothes of the accused as per MOs.6 & 7 a pant and a shirt belonged to the accused from the house of the uncle of the accused at the instance of the accused.
20. PW-10 Dr.S.Manju who was working as a doctor in Nelamangala town Hospital examined the dead body of Afroz Pasha and issued Post Mortem examination report as per Ex.P-14. He has specifically stated in the said report that the death of the deceased was due to “shock, secondary to head injury.” He has also given his opinion regarding the grinding stone MO-3 which was seized in this case under Ex.P-2 Mahazar to the effect that, by assaulting a person with the said MO-3, grinding stone, such injuries on the deceased could be caused.
21. PW-11 B.C. Byregowda, Retired PSI Nelamangala has deposed with regard to the registration of a case on the basis of the report lodged by PW-1 as per Ex.P-1 on 21.12.2011 in Crime No.334/2011 for the offence punishable under sections 302 and 201 of IPC. He has also prepared the FIR as per Ex.P-16 and dispatched the same to the jurisdictional Magistrate.
22. PW-12 Sridhara, has deposed that, he has undergone training through the Police Department to handle specialised dogs. As per the direction and instruction given by the Investigating Officer of Nelamangala Town Police Station, he came with two sniffer dogs in search of culprits. He was allowed with two sniffer dogs in the Godown place, one of the dogs after sniffing went to the house of the accused and stopped there. He has further deposed that, the accused was not there at that time. He has given his report to the Investigating Officer as per Ex.P-17.
23. PW-13 Dr. S Prakash is the Investigating Officer. He has deposed that he has arrested the accused and recorded his voluntary statement and on which basis he has recovered the incriminating articles at the instance of the accused. Apart from conducting other investigation process, he has also deposed that after securing the FSL report, he has laid the charge sheet against the accused person.
24. On the basis of the above said evidence, as rightly contended by the learned counsel for the appellant and learned SPP-II, the prosecution has projected 4 important circumstances in this case. In our view also, the said circumstances require to be considered by this court.
25. Before adverting to consider the above said circumstances, we feel it just and necessary to quote a decision cited by the learned counsel for the appellant reported in 2018 SCC OnLine SC 2281 between Reena Hazarika and State of Assam, wherein the Hon'ble Apex Court, at paragraphs 9 & 10, has observed in the following manner.
“9. The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given.
10. Before proceeding with the discussion further, we deem it proper to notice that the appellant did not have the benefit of a lawyer of her choice, both before the trial court and the High Court, naturally because of some handicap. She had to be provided legal assistance by the Legal Services Authority. This is not to make any comment or observation on the nature of the defence made available to the appellant, but only to notice her handicap in establishing her innocence.”
26. In the above said case, the court has cautioned as to under what circumstances, the onus has to be shifted on the accused u/s.106 of the Indian Evidence Act, 1872 and also the court should take care of the material evidence available on record. If the accused is not supported by the advocate of his choice and the legal infirmities should also be taken into consideration by the court while dealing with the matter. Therefore, what reminds us is, in order to establish and prove the circumstantial evidence case, the prosecution has to establish all the circumstances projected beyond reasonable doubt. Further, added to that, they have to show that there is a completion of the chain on the basis of the proved circumstances which are sufficient to draw an inference of guilt of the accused. The court should inevitably come to a definite conclusion that on the basis of the circumstances proved by the prosecution, accused is the perpetrator of the crime and there is no other inference can be drawn on the basis of the same materials on record.
27. Bearing in mind the above said principles laid down, now we would like to discuss the circumstances one by one which are projected by the prosecution.
28. HOMICIDAL DEATH OF THE DECEASED:
There is no much dispute so far as this aspect is concerned. PWs.1, 2 and 8 and also the inquest witness PW-7 in their evidence, have invariably stated that they have seen the dead body of the deceased before sending it for Post Mortem examination, they found that there were serious injuries to the head of the deceased. Apart from the above, PW-10 Dr.S.Manju, who was working as Specialist in Nelamangala General Hospital during that point of time has deposed that, he has conducted the Post Mortem examination on the dead body of the deceased on 21.12.2011 on the request of Nelamangala Town Police. After examination, he has stated that the death has occurred 12 to 24 hours prior to Post Mortem examination. He found injuries on the head of the deceased and he is of the opinion that the death was due to shock and secondary to the head injury.
29. The above said factual aspects as spoken to by the Doctor has not been denied so far as the death of the deceased is concerned. As could be seen from the cross examination of the Doctor much has been concentrated on the academic side, but so far as this particular case is concerned, there is no specific suggestion or specific evidence has been elicited as to what would be the alternate cause for the death of the deceased, except the one stated by the doctor. Of course, some questions have been put to the doctor as to whether he has found any blood stains on the grinding stone MO-3 etc. During the course of cross examination, he amplified his evidence deposing that, if a person is assaulted on the forehead with the help of an object like MO-3 grinding stone, naturally there would be damage to the head and nose, which he found on the dead body. Though he has admitted that some other damage could also be caused to the brain but those injuries could not have been caused on the dead body. Further, it is clear that the death of the deceased as stated by the doctor was due to the injuries sustained by the deceased. No other inference can be drawn that the death of the deceased was otherwise than such injury. Who caused that injury and who is the perpetrator of the crime has to be ascertained from other circumstances. However, on the basis of the above said materials on record, we are of the opinion that the prosecution has successfully established the homicidal death of the deceased. Now, the next aspect of the matter is Motive.
30. MOTIVE:
The learned counsel has drawn our attention to a decision of the Hon'ble Apex Court reported in (2015) 4 SCC 739 between Nagaraj and State represented by Inspector of Police, Salem Town, Tamil Nadu, wherein, at paragraph 13 of the said decision, it has been observed thus – “Xxxxxxx. While circumstantial evidence is sufficient to written a conviction, this is possible if it contains all the links that connect the accused to the incident, and the inconsistencies are extremely trivial in character. Furthermore, motive assumes great significance where a conviction is sought to be predicated on circumstantial evidence alone, and its absence can tilt the scales in favour of the accused where all links are not avowedly present.”
31. Therefore, in view of the above said decision, the court has to examine whether the circumstances which are projected by the prosecution have sufficient links to each other; and whether the motive assumes significance in a given case; and whether the absence of any motive, if other decisive circumstances are satisfactorily established by the prosecution; whether the court can still record a conviction? In our opinion, it all depends upon the facts and circumstances of each case. The proof or no proof of the motive alone is not sufficient to draw an inference that the prosecution has proved its case beyond reasonable doubt. In certain cases, even in the absence of motive, if decisive circumstances are proved beyond reasonable doubt, merely because the motive has not been proved, the court cannot throw out the case of the prosecution. Therefore, in our opinion though the Hon'ble Apex Court has observed the motive assumes great importance, but it all depends upon the facts and circumstances of each case. In this background, now, we will turn to the motive factor.
32. The evidence of PW-8 Jareena, mother of the deceased, is the only witness available to the prosecution so far as this aspect is concerned. She has deposed before the court in one sentence at paragraph 2 that she was given to understand that, there was quarrel between her son and the accused because of a girl. Except this one sentence, she has not stated anything about the details of the motive pleaded, which was sufficient for the accused to do away with the life of the deceased. Though it is in one line statement made in the examination-in-chief, but in the course of cross examination, in our opinion something more has been elicited. It is suggested to this witness that prior to the incident, her son Afroz pasha told her that, he was in love with one Shabeena and that, he has also told her that, accused had also in contact with the said Shabeena and in that behalf, a quarrel took place between accused and the deceased regarding the said girl. But, she has further deposed that she cannot say whether they had quarreled each other by man-handling or not, but she can only say that there was a quarrel between the accused and the deceased Afroz Pasha in respect of love affair with Shabeena. This motive factor in our opinion is a glimpsical aspect before the court, but not established beyond reasonable doubt. To draw a definite inference that this motive was sufficient for the accused to do away with the life of the deceased, though we cannot draw any inference only on the basis of the motive. The court has to consider the other circumstances which are available in the present case.
33. LAST SEEN CIRCUMSTANCE:
The next important circumstance pleaded by the prosecution “is the last seen of the accused and the deceased together.” Before adverting to the evidence available on record, we also feel it just and necessary to cite a decision relied upon by the learned counsel for the appellant reported in Kanhaiyalal vs. State of Rajasthan reported in (2014) 4 SCC 715, wherein the Hon'ble Apex Court has observed at paragraphs 12 and 15 thus:
“12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.
15. The theory of last seen-the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time.”
(emphasis supplied) Further, the Hon'ble Apex Court has appreciated the material evidence on record, and the court has laid down the above said principle on the basis of the factual aspects prevailing in that particular case. The court has found that, the cordial relationship between the accused and the deceased was in existence from long time and only one circumstance i.e., singular piece of circumstantial evidence of last seen was established before the court. Therefore, when such being the case, the court should be very careful in considering the evidence on record.
34. The above said ruling in our opinion is applicable and available to the accused if it is shown that one and only circumstance available is last seen circumstance. Even if such last seen circumstance is proved to the hilt, the court has to think whether in the absence of other corroborative material or other circumstances which are decisive in nature and also which can be on the basis of such decisive circumstances, the court can draw an inference of guilt or not. Therefore, the court has to look into the entire circumstance which are proved before the court by the prosecution and then the court has to take appropriate decision in this regard.
35. In this background, we would like to discuss the evidence of the three witnesses; they are PWs.3, 4 and 6 who have spoken about the last seen of the accused and the deceased together, coupled with the evidence of PWs.2 & 8 also to some extent.
36. PW-8, Jareena the mother of the deceased has deposed before the court that on the previous day of the incident, in the evening, the accused came to her house and took the deceased along with him telling that they are going to sleep in the Godown of PW-1. On the next day morning, she came to know about the death of her son and she went to the Godown of PW-1 and saw the dead body of her son with bleeding injuries to his head. In the course of cross examination, she has further amplified that, when the accused came in contact with the deceased Afroz pasha, at that time, her son was playing Cricket in a field at Islampura, in Nelamangala Town and at that time, she was in her mother’s house at Dargah Mohalla, Adepete, Nelamangala. When she was waiting for her son, at that time, accused took her son in the motor cycle and she saw both the persons on the road on Islampura. In fact, this aspect has been reiterated in the course of cross examination also. She has further amplified the said evidence in the further cross examination that she has not seen as to where exactly they have actually gone. But her another son Syed Tabrez saw the accused along with the deceased at Shanthi film theatre Nelamangala at 8.00 p.m., Though the said Syed Tabrez was not examined, but nothing has been elicited during the course of cross examination of PW-8.
37. Be that as it may, the other witness PW-3 in support of the evidence of PW-8 has categorically stated that he knew deceased Afroz pasha. PW-3 is the neighbour of the deceased and he also knew accused Kousar. He has deposed that on the previous day of the incident at about 8 or 8.30 p.m., the accused and Afroz Pasha were talking together near a Peepal tree. After seeing them, he went to his house. On the next day morning he came to know the death of the deceased Afroz Pasha in the Godown. He also went to the Godown of PW-
1 and saw the dead body of the deceased. No much cross examination has been done so far as these witnesses are concerned. However, it is further deposed by this witness in the course of cross examination also that, his house is at a distance of 50 feet away from the said peepal tree and there was a light near the said peepal tree and he has seen the accused and the deceased sitting underneath the said peepal tree. In the course of cross examination, it is questioned that whether he could see the colour of the clothes worn by the deceased and accused, for which he has deposed that because of the darkness, he could not able to see what type of clothes those two persons were wearing. Except this evidence, nothing has been elicited as to what was the reason for him to depose falsehood and falsely to implicate the accused etc. There is no evidence to show that this witness was a stranger to the accused and the deceased or having any ill-will or hatredness against the accused to give such evidence.
38. PW-4 Thimmegowda, has not supported the case of the prosecution. According to the prosecution on the previous day, accused and the deceased went to the Savitha Bar, where he was working as a cashier. But, this witness has not supported the case of the prosecution in any manner.
39. PW-6 Mohammed Habib deposed before the court that, on 21.12.2012 at about 6.00 a.m., in the morning, he heard some galata in the locality and he went near the Godown of PW-1 and found the dead body of the deceased wrapped in Shamiyana sidewall, but the leg of the body was protruding. He has stated that, he saw the accused and the deceased on the previous day talking and sitting under a peepal tree. He has also deposed that at about 7.30 or 8.00 a.m., on the next day morning, the Police had come to the spot with the sniffer dogs and the dog after sniffing the scene of offence directly went to the house of the accused. The witness has categorically stated about, he witnessed the accused and the deceased on the previous day. During the course of cross examination, he has further re-iterated that prior to the incident also on various occasions; he saw the accused and the deceased together, as they were residing in the same locality. He saw the accused and the deceased Afroz pasha, sitting under a peepal tree and no other persons were present at that particular point of time. Witness re- affirmed that, he saw both the accused and the deceased sitting under the peepal tree. Though he has stated that, he was unable to say the colour of the pant and shirt worn by the accused and deceased but nothing is there to discard the evidence though he was cross examined at length by the defence counsel, nothing is available as to why this witness has to depose falsehood against the accused. Unless there is any animosity, ill-will or hatred- ness against the accused he would not implicate the accused, because this witness is also belonged to the same locality.
40. Apart from the above said evidence with regard to witnessing the accused and the deceased sitting together underneath a peepal tree, the accused has also not disputed so far as these aspects are concerned. Even during the course of examination of the accused u/s.313 of Cr.PC, the accused has stated that on that particular day himself and the deceased Afroz Pasha were together upto 10.00 p.m., underneath the peeple tree and thereafter, they went near the Godown of PW-1 and thereafter, he went along with one Muniraju and he do not know what happened later. Therefore, the above said explanation given by the accused clearly goes to show that upto 10.00 p.m., on that particular day i.e., on the previous day of the incident, he was with the deceased Afroz pasha.
41. PW-2 in this regard, has categorically stated in her evidence that on the previous day of the incident, the accused came to her house and requested for the key of the Godown stating that, as it was a winter season, he would like to sleep inside the Godown. After taking the Godown key, he went to sleep in the Godown. But on the next day, PW-1 went to the Godown and saw the dead body of the deceased Afroz Pasha and came back to the house and informed the same to PW-2. PW-2 went and identified the dead body as that of Afroz pasha and she has categorically deposed that accused was the person who slept in the Godown on that particular night.
42. Looking to the above said circumstance, the last seen theory is not only deposed by the witnesses, but this fact has been admitted by the accused; though it is not in the nature of confession, but he has admitted the fact that he was with the deceased Afroz pasha upto 10.00 p.m., on that particular night. When PW-2 has categorically stated that, the accused slept in the said godown, and he was alone in the said Godown and no other coolie workers were there, but, in the morning, the dead body of the deceased found in the godown, in our opinion, it inevitably creates a strong suspicion against the accused which he has to explain as to what happened in the godown on that particular night. It is not explained by him when he return keys of the godown either to PW-1 or PW-2. Particularly, when PW-1 went to the Godown in the early morning at about 4.30 p.m., he observed that the shutter of the said Godown was half opened, and why the said Godown was half opened is not explained by the accused; when he entered the Godown and when he went out of the Godown what happened to Afroz Pasha has not been explained by the accused in his examination under Section 313 Cr.P.C. It has not even suggested to any of the witnesses about this. Therefore, in our opinion, the circumstance of last seen theory has been established by the prosecution beyond reasonable doubt.
43. RECOVERY:
It is the case of the prosecution that the accused has committed the murder of the deceased by assaulting the deceased with the help of a grinding stone, which was in the godown of PW-1. While inspecting the spot, the Investigating Officer has seized certain articles from the spot and further, the said alleged grinding stone has also been seized and after the post-mortem examination, the Police have also collected the blood stained clothes of the deceased. There is no much dispute so far as these aspects are concerned. The witnesses examined before the Court have supported the case of the prosecution so far as this aspect is concerned. With regard to the seizure of these articles from the spot, as could be seen from the evidence of PW-5, who has deposed before the Court that he was present at the time of drawing up of the Mahazar as per Ex.P-2 and also when all the material objects – MOs.1 to 5 are collected. MOs.1 to 5 are the blood stained sample cotton, Grinding stone, Shamiyana sidewall, in which, the dead body of the deceased was wrapped and a woolen cap. All these articles were stained with blood and they were seized from the spot.
44. It is the further case of the prosecution that after the arrest of the accused, the accused has given his voluntary statement and on the basis of the voluntary statement, he took the Police and the panch witnesses to his uncle’s house, there he produced his pant and shirt which are marked as MOs.6 & 7. In this context, it is worth to refer the deposition of the Investigating Officer PW-13 as well as PW-9 Nisar Ahmed. PW-13 Investigating Officer has stated before the Court that the accused was arrested by him and he recorded the voluntary statement of the accused as per Ex.P-19 and accused was actually arrested on 24.12.2011. Thereafter, he collected the panchas and took the accused along with him and accused led the panch witnesses to Savitha Bar, situated at Sondekoppa road, Nelamangala Town and shown the said place, where the accused and the deceased consumed alcohol on 20.12.2011. So far as this aspect is concerned, no witness has supported the case of the prosecution.
Again, it is further deposed that the accused took the deceased and Panchas to the spot i.e., godown belonging to PW-1 and there also the police have witnessed the spot and thereafter the accused took the panchas and the Investigating Officer to the house of one Mirza Ismail, situated at Bapuji Nagar, I Main Road, Bengaluru, and accused inspected the house and brought the blood stained clothes and produced before the Investigating officer, which are marked as MOs.6 and 7 and the police drew up a Seizure Mahazar as per Ex.P-13.
45. PW-9 Nisar Ahmed, in fact has fully supported the case of the prosecution so far as this aspect is concerned. He has deposed before the Court that the said aspect of recovery of Shirt and Pant at the instance of the accused, in his presence was videographed and photos were also taken. He has deposed that he was present during the recovery of the clothes and he signed the Seizure Mahazar Ex.P-13 on the spot itself. This witness was cross-examined at length. He has deposed further denying all the allegations made during the course of cross-examination by way of suggestions. He has further denied the suggestions that, he has not visited the godown of PW.1 or the place where the alleged recoveries were made. It is suggested to him that he signed the Mahazar after its preparation by the police and it is also suggested during the course of cross examination that the contents of the Mahazar was not actually read over etc. He identified the colour of the Pant seized at the time of seizure. Even what has not been done in the examination- in-chief have been covered in the course of cross- examination because of the lengthy cross-examination adverted to.
46. The rest of the cross-examination is with reference to denial of the whole circumstances, regarding the accused taking the police and panch witness to various places and drawing up of the Mahazar, but all those suggestions are denied by the witness. What reminds us that in order to dis-believe the evidence of a witness, there should be some strong material in the course of the cross-examination. Merely because some suggestions have been put, those suggestions will not take the place of proof or defence of the accused being proved. There should be some material in the course of cross- examination that as to why this witness has to give false evidence against the accused. There is no semblance of such material elucidated in the course of cross- examination. The Investigating Officer also in our opinion while discharging his duty as a public servant has arrested the accused and recovered the above said articles at his instance. The evidence of the Investigating Officer is fully corroborated by the evidence of PW-9.
47. The other items i.e., MO.8-Shirt, MO.9-Banian, MO.10-Cap and MOs.11 and 12-Pant and Underwear of the deceased were also seized in connection of this case after the post-mortem examination, as per the evidence of the Investigating Officer. There cannot be any denial by the accused so far as these aspects are concerned, because his defence is total denial of the prosecution case. He has not even taken any special defence with regard to the above said aspects. Therefore, there is no reason for the Court to disbelieve the evidence of the prosecution witnesses.
48. Looking to the above said recovery proceedings, the prosecution has in fact established the recovery of incriminating articles, particularly, the clothes at the instance of the accused and other material objects from the spot and the clothes of the deceased after the post-mortem examination. Now, the Court has to examine how the prosecution has to connect these articles to the crime and in turn, the perpetration of Crime by the accused. The prosecution in fact according to the evidence of the Investigating Officer has sent these articles to the Forensic Science Laboratory for examination. Ex.P-26 is the document produced before the Court, which shows that the said items were sent to the Forensic Science Laboratory under sealed covers. The sealed covers, are tallied with the sample seal of the Government Forensic Science Laboratory, Madiwala, Bengaluru, when they were opened by its Director, and thereafter the items were examined and a Report was issued, which discloses that except item No.2, all other items were stained with blood and the presence of blood stains were detected in all the above said items and the said blood stains were that of ‘B’ group. This clearly discloses that the blood stains found on the incriminating articles, particularly, on the grinding stone and as well as on the clothes of the deceased disclose that, the said blood group tallies with that of the blood group of the deceased. Further, added to that, the blood stains, which were found on the clothes of the accused, which were seized as noted above also tallied with the blood group of the deceased. Therefore, it becomes the responsibility on the accused to establish how he had the blood stains of ‘B’ group on his clothes when they were recovered at his instance. Of course, the learned counsel for the accused/appellant strenuously contended that the prosecution has not examined the blood group of the accused so as to completely eradicate the doubt that the said blood stains on the clothes of the accused might be that of the accused himself. In our opinion there should be some defence that should have been taken by the accused in this regard that he has sustained any injury at any point of time or it is his blood that was fallen on his clothes. In the absence of such facts, the Court has to look into the probabilities of the case. When the prosecution has proved the recovery of blood stained clothes at the instance of the accused, which is tallied with the blood group of the deceased. In our opinion, that aspect cannot be easily brushed aside.
49. The learned Counsel also contended that the author of Ex.P-26 has not been examined before the Court. It goes without saying that this has been issued by the Forensic Science Laboratory by the authorized Scientific Officer. Section 293 of Cr.P.C, enables the Court to read the contents of the said document as evidence. If the accused or the Court suspects or doubts the contents of the said document, the accused is at liberty to secure the presence of the said witness for cross examination or if the Court is of the opinion that it has got any doubt, about the contents of the said document suo motu the Court can also secure the presence of said witness and question the said witness and allow the said witness to be cross-examined by the other side. If there is no such exercise done either by the accused or by the Court, it goes without saying that the contents of the said document can be read as evidence. Once it can be read as evidence, the presumption arises to the contents of the said document as the same has been furnished by a public servant; which act of the public servant has been done while discharging his duty as a public servant during regular course of business in his office. Therefore, the said contention of the learned counsel in our opinion is not tenable. The recovery chapter as projected by the prosecution is fully established, which also incriminates the accused and accused has no answer so far as this aspect is concerned. Looking to the above said facts and circumstances of the case, there is ample material to show that there is a connection of these materials with that of the crime which unerringly indicate that the accused is the perpetrator of the crime.
50. Before parting with the judgment, we would like to discuss another important aspect raised by the learned Counsel that, the accused was not assisted or defended by a Counsel of his choice. The Counsel, who appeared for the accused has not done effective cross- examination of the witnesses and material contradictions were not elicited during the course of cross-examination of the witnesses etc. Particularly, he drawn our attention to the evidence of the mother of the deceased examined before the Court as PW-8, wherein, she has categorically stated in the evidence that the accused took the deceased along with him on the previous date of the incident. But in the course of inquest proceedings, when her statement was recorded, she has not stated so but she only stated that the deceased left the house stating that he would go along with the accused to sleep in the godown of PW-1. Therefore, the fact that the accused taking the deceased was improved version during the course of cross- examination before the Court. Though some contradictions are there but even in our opinion, the same is not sufficient to remit the matter to the Trial court as prayed by the learned Counsel for the appellant. It is not that in all the circumstances, the Court has to remit the matter to the Trial Court, there must be substantive prejudicial instance occurred during the course of the evidence before the Court or there should be some violation of principles of natural justice that is to say the accused was not provided with sufficient opportunity to cross examine the witnesses or to defend himself before the Court. It is not the case of the accused that no opportunity was given to him. As could be seen from the cross-examination of all the witnesses as we have already observed that sufficient opportunity was provided by the trial Court and defence Counsel also substantially cross- examined the witnesses. Of course, if any contradiction, omission or the embellishments in the evidence of the prosecution witnesses, which go to the root of the prosecution case itself, in such an eventuality, the Court may think of remanding the case to the Trial Court. Even accepting such contradiction as elucidated by the learned Counsel, but the same has not been proved before the Trial Court in accordance with law. Though such contradictions cannot be taken into consideration by this Court, as a worthy contradiction that will not in any manner totally uproot the remaining evidence of the prosecution case, which are sufficient to arrive at a conclusion, as to whether the prosecution has proved its case beyond reasonable doubt or not. In our opinion, even that portion is considered; it will not impair the case of the prosecution in any manner.
51. The learned counsel for the appellant has also very strenuously argued before us that there is absolutely no reason found by the Trial Court so as to draw an inference that the prosecution has to prove the guilt of the accused under Section 201 of IPC. We have carefully perused the judgment of the Trial Court. Of course, the learned Counsel is right in submitting that the Court has not given any reasons for convicting the accused under Section 201 of IPC. What evidence available on record is that, the accused after committing the murder of the deceased has wrapped the dead body in a side wall of Shamiyana. Except that there is no allegation that the accused has made any attempts to make the evidence to disappear that may be used against him in order to attract the provision under Section 201 of IPC. The prosecution has to establish that “the accused knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment or with that intention gives any information respecting the offence, which he knows or believe to be false.” In this particular case, the accused except wrapping the dead body has done nothing in order to cause any evidence to be disappeared or he has not done anything in order to screen any material from the place and there is no allegation that he has given any information respecting the offence, which he knows or believe to be false to the Investigating Officer. In the absence of such evidence before the Court, in our opinion, drawing of the inference that the prosecution has also proved the guilt under Section 201 of IPC is baseless and the same requires to be set aside by this Court. Therefore, partially, the Judgment of the Trial Court deserves to be interfered with.
52. With these observations, we proceed to pass the following:
ORDER (i) The appeal is partly allowed.
(ii) The judgment of conviction dated 22.01.2015 and order on sentence dated 24.01.2015 passed by the I Addl. District & Sessions Judge, Bengaluru Rural District, Bengaluru, in SC No.227/2012, for the offence punishable under Section 302 of IPC is hereby confirmed.
(iii) However, the conviction and sentence passed against the appellant/ accused for the offence punishable u/s 201 of IPC is set aside.
(iv) If any fine is deposited by the accused in respect of the offence under Section 201 of IPC, the same shall be refunded to the accused after proper acknowledgement and identification;
(v) If the fine amount is deposited so far as the offence under Section 302 of IPC is concerned, the entire amount of `10,000/- shall be paid to PW.8 - Smt.Jareena, the mother of the deceased as ordered by the trial Court after proper acknowledgement and identification.
(vi) The appellant/accused is entitled for set off u/s 428 of Cr.PC.
Sd/- JUDGE Sd/- JUDGE PL*/CP